(PS)Osborne v. Calvache ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHELLE OSBORNE, Case No. 2:20-cv-02341-KJM-JDP (PS) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THIS CASE SHOULD NOT BE 13 v. DISMISSED AS DUPLICATIVE OF CASE 2:20-cv-01805-JAM-KJN 14 JOSE CLAVACHE, et al., ECF No. 1 15 Defendants. OBJECTIONS DUE WITHIN 14 DAYS 16 17 Plaintiff proceeds without counsel in this civil rights action brought under 42 U.S.C. 18 § 1983. On October 12, 2021, I screened the complaint and found it appeared duplicative of 19 another case. ECF No. 3. I ordered plaintiff to show cause why her case should not be dismissed 20 as duplicative. On November 12, 2021, plaintiff responded, ECF No. 4, and this matter is now 21 ripe for review. For the reasons below, I recommend that this case be dismissed as duplicative. 22 Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject to 23 dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e). See, e.g., Cato v. United 24 States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); McWilliams v. State of Colo., 121 F.3d 573, 574 25 (10th Cir. 1997); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993); Bailey v. Johnson, 846 26 F.2d 1019, 1021 (5th Cir. 1988). “Plaintiffs generally have ‘no right to maintain two separate 27 actions involving the same subject matter at the same time in the same court and against the same 28 defendant.’” Adams v. California Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) 1 (quoting Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977)), overruled on other grounds by 2 Taylor v. Sturgell, 553 U.S. 880, 904 (2008). 3 “To determine whether a suit is duplicative, we borrow from the test for claim 4 preclusion.” Adams, 497 F.3d at 688. “‘[T]he true test of the sufficiency of a plea of ‘other suit 5 pending’ in another forum [i]s the legal efficacy of the first suit, when finally disposed of, as ‘the 6 thing adjudged,’ regarding the matters at issue in the second suit.’” Id. (quoting The Haytian 7 Republic, 154 U.S. 118, 124 (1894)). “Thus, in assessing whether the second action is duplicative 8 of the first, we examine whether the causes of action and relief sought, as well as the parties . . . 9 to the action, are the same.” Adams, 497 F.3d at 689. See also Serlin v. Arthur Anderson & Co., 10 3 F.3d 221, 223 (7th Cir. 1993) (internal quotation marks and citation omitted) (“[A] suit is 11 duplicative if the claims, parties, and available relief do not significantly differ between the two 12 actions.”). 13 On September 8, 2020, defendants removed case number 2:20-cv-01805-JAM-KJN from 14 state court into federal court. On November 23, 2020, plaintiff filed this case. In the first case, as 15 in this case, plaintiff sued several police officers and the police department regarding the police 16 response to an incident of domestic violence and subsequent sexual assault at her residence. The 17 allegations, claims, and defendants in both cases do not significantly differ. In her response to the 18 order to show cause, plaintiff argues that this case should not be dismissed because the other case 19 has been closed and had an unfavorable result. As for plaintiff’s first point, an open case can still 20 be duplicative of a closed case. See, e.g., Quair v. Cdcr-Hq, No. 5:18-02595 PSG (ADS), 2020 21 U.S. Dist. LEXIS 248385, at *4 (C.D. Cal. Dec. 29, 2020); United States v. Murphy, No. 11- 22 20652-CR-PAS, 2020 U.S. Dist. LEXIS 124682, at *2 (S.D. Fla. July 9, 2020). As for the 23 unfavorable result, plaintiff had an opportunity to appeal the decision in her previously litigated 24 case. See Fed. R. App. Proc. 4. Further, the result of that case does not make it any less 25 duplicative of this one. I conclude that this case is duplicative of Osborne v. Tracy Police 26 Department, 2:20-cv-01805-JAM-KJN. 27 I recommended that plaintiff’s complaint be dismissed, and the Clerk of Court be directed 28 to close this case. These findings and recommendations are submitted to the U.S. District Judge 1 | presiding over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within 14 days of 2 | the service of the findings and recommendations, the parties may file written objections to the 3 | findings and recommendations with the court and serve a copy on all parties. That document 4 | must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 5 | presiding district judge will then review the findings and recommendations under 28 U.S.C. 6 | § 636(b)(1)(C). 7 g IT IS SO ORDERED. Dated: _ November 16, 2021 Q_—_—. 10 JEREMY D. PETERSON i UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28